Fernwood Mfg. Co.

National Labor Relations Board - Board Decisions

Nov 22, 1957

119 N.L.R.B. 575 (N.L.R.B. 1957)

FERNWOOD MFG. Co. 575
service field, either in actual repair, or in assisting and instructing
appliance servicemen , we believe that he is appropriately included
in a unit of servicemen, even though he does not work in the metro-
politan Baltimore area. We therefore adopt the recommendation of
the Regional Director that Storm's ballot be opened and counted.
The Petitioner contends that Cohen is the shop foreman in charge
of the television and appliance repair shop, with authority to assign
work and to make effective recommendations for discharging shop
employees. There are four repairmen in the shop, including Cohen.
He is the senior man in point of service and experience. He helps
the other men on difficult repair problems, and does most of the paper-
work such as making up work tickets and keeping inventory records.
His rate of pay is the same as that of the other three challenged voters,
and it is more than that of any other shop repairman. He shows the
men how to do their work properly, and instructs newly hired shop-
men. Moylan informed Cohen about 6 months before the election
that he was'to be the shop leader, and Cohen stated during the course
of the Regional Director's investigation that he felt that he was re-
sponsible for seeing to it that the work in the shop got done. Al-
though lie has no authority to take disciplinary action against
employees, we are nevertheless satisfied that he is a supervisor because
he assigns work to the shop repairmen, and is responsible for their
doing the work properly. We therefore overrule the Regional Di-
rector's recommendation as to Cohen, and sustain the challenge to his
ballot.
[The Board directed that the Regional Director for the Fifth Re-
gion shall, within ten (10) days from the date of this Direction, open
and count the ballots of John J. Asendorf, James W. Crowson, and
Robert E. Storm and serve upon the parties a revised tally of ballots.]
Max Leventhal d/b/a Fernwood Mfg. Co.' and Furniture Work-
ers, Upholsterers and Wood Workers Union, Local 123, Peti-
tioner. Case No. 931-RC-4849. November 22, 1957
DECISION AND DIRECTION OF ELECTION
Upo a petition duly filed under Section 9 (c) of the National Labor
Relatic is Act, a hearing was held before Belle Karlinsky, hearing
1 During the hearing, the parties stipulated that the name of the Employer was "Max
Leventhal doing business as Fernwood Manufacturing Company." It appears, however,
from the entire record, that the name used by the Employer is abbreviated as it appears in
the caption.
119 NLRB No. 77.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Murdock and Rodgers].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9,
(c) (1) and Section 2 (6) and (7) of the Act.'
4. (a) The scope of the unit: The Petitioner seeks a unit confined to
employees of the Employer, whereas the Intervenor maintains that
the history of bargaining establishes that only an industrywide unit
is appropriate. The Employer takes no position on the unit issue.
Before the Employer began operations, Max Leventhal was presi-
dent and owned 50 percent of the stock of Fernwood Manufacturing
Corporation, herein referred to as the Corporation, and David Fine-
good owned the remaining 50 percent. The Corporation, which em-
ployed about 60 employees, was engaged in the manufacture of various
kinds of furniture and did contract work on organ parts. Its equip-
ment was rented from Belvidere Manufacturing Company under a
lease effective until 1958.
The Corporation had been a member since about 1948 of the Indus-
trial Relations Council of Furniture Manufacturers in Southern Cali-
fornia, herein referred to as the Council, which bargains collectively
on behalf of its members with the Intervenor. In 1955, Finegood,.
for the Corporation, was one of the signatories to the Council-Inter-
venor contract which was executed on August 1, 1955, and provided
that it would be effective until July 1, 1957, and automatically renew-
able thereafter absent 60 days' notice in writing of a desire to termi-
nnate, modify, or amend.
In April 1956, the Corporation ceased operations, and on May 4,.
1956, made an assignment for the benefit of its creditors. The Corpor-
ation's employees were paid off by the plant superintendent.' On
October 31, 1956, the Intervenor filed suit against the Corporation and.
' The Intervenor, Furniture Workers Union, Local 3161, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, was properly permitted over Petitioner's objection
to intervene at the hearing upon the basis of a contract interest. See F. H. ',SoldivedeT.
Company, 113 NLRB 225.
3 At the hearing, all the parties, including the Intervenor, stipulated to the existence-
of a question concerning representation.
' l i,enthal tostified that he did not know- what the superintendent told the employees.
when he paid them off.
FERNWOOD AIFG. Co. 577
Leventhal alleging a breach of the union-security provisions of the
contract, and seeking an injunction and damages.'
About the middle of May 1956, Leventhal began operation of Fern-
wood Manufacturing Company, which is wholly owned by him. This
Company, the Employer herein, manufactures organ parts under con-
tract at the location formerly occupied by the Corporation. It leases
the same equipment from the same company, but at a different rental
and on a month-to-month basis. Leventhal testified that he immedi-
ately hired 8 or 10 6 of the former employees of the Corporation,' and
that the Employer now has about 40 employees, about 10 of whom
formerly were employed by the Corporation.
In about May 1957, the Employer issued a bulletin to its employees
setting forth its policies as to vacations, holidays, and seniority, and
announcing that an insurance plan was under study.' In June, the
Employer issued another bulletin describing an insurance plan which
was to become effective on June 11, 1957, and which differed in
some particulars from the provisions on this subject in the Council-
Intervenor contract. Also in June, the Employer posted on the bul-
letin board a vacation schedule providing for 1957 vacations prorated
according to length of service, those employees who began working for
the Company before July 1956 being given the longest vacation.
Leventhal testified that the Employer does not belong to any asso-
ciation that negotiates with labor organizations, and does not deal
jointly for any purpose with other manufacturers. He also testified
that he had talked several times with the Council attorney, but they
had not discussed whether he would continue his Council membership,
or whether the Employer would become a member. Leventhal had
received no written communications from the Council since April
1956, but stated that "all my communications with them have been
verbal."' He did not remember when Council dues were last paid, nor
5 It is not clear just when Leventhal discontinued compliance with the checkoff and
other provisions of the contract . The record establishes only that it was prior to October
31, 1956. when the lawsuit was instituted.
6 The Employer 's payrolls which are in evidence for the weeks of May 29 , June 5, and
June 12, 1956 , however , show only 4 employees , and that for the week of June 19. only 7
employees.
7 Leventhal testified with regard to these employees that-
I told them that I would abide by the contract that I always had with them and that
they would receive their paid vacations, paid holidays and rates similar to what I
had paid them before ... . I told them that they were entitled to their vacation as
though they had continued working for me. that they would continue working for me
under the same conditions that they had before, that they didn't or wouldn't lose any
of the benefits because of the changes . . . I also told them that I felt that . . . we
could work together in the spirit we had worked when we had the Union contract.
I did mention at the time I didn't know if I could continue the insurance policies that
they had had but as soon as the firm was on its feet and I could see my way clear
that I would see that they got'the result of the benefits.
a'Some provisions in this bulletin were taken verbatim from the Council -Intervenor con-
tract.
476321--58-vol. 119-38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when he last attended a Council meeting, which he had previously
attended "at least a minimum of two or three times a year." Because
of the pending lawsuit instituted by the Intervenor, Leventhal refused
to testify whether he was at present a member of the Council or
whether he would deal through the Council in the future. He did
testify, however, that he had not participated in the negotiations be-
tween the Council and the Intervenor with regard to renewal of the
contract which was in effect until July 1957.
It is clear that Leventhal established the Company about a month
after the Corporation had ceased operations, paid off its employees,
and executed the assignment of its assets. It is also evident that the
Company is wholly owned by him, operates under its own lease, makes
only part of the products made by the Corporation, and employs fewer
employees than the Corporation, most of whom had not been employed
by the Corporation, and with whom he has been bargaining directly
rather than through a union. As Leventhal thereby created a new
business entity, distinct from the Corporation, it follows that this
new Employer cannot, without more, be bound, as the Intervenor
contends it is, by the industrywide pattern of bargaining.' Accord-
ingly, in the absence of any multiemployer pattern of bargaining
applicable to this Employer, we find that a unit limited to the Em-
ployer's employees is appropriate.
(b) The composition of the unit: The Petitioner seeks a unit of all
the Employer's production and maintenance employees, excluding
office clerical employees, salesmen, guards, professional employees, and
all supervisors as defined in the Act. The Intervenor contended that
the petition described an inappropriate unit, but did not indicate
what categories it would include or exclude, and the Employer took
no position on the unit question. As a plant unit is presumptively
appropriate,10 and as no evidence was presented to establish that the
proposed unit is inappropriate, we find that the unit sought by the
Petitioner is appropriate.
Accordingly, we find that the following employees constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act :
All production and maintenance employees employed at the Em-
ployer's Los Angeles, California, plant, excluding office clerical
employees, salesmen, guards, professional employees, and all super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication.]
9 Although it is not clear that a contract-bar contention has been raised herein, as the
contract is not applicable to the Employer, it could not in any event constitute a bar
to this proceeding.
'° Beaumont Forging Company, 110 NLRB 2200.